Skagias v Campbelltown City Council

[2010] NSWLEC 1187

Land and Environment Court

of New South Wales

CITATION:	Skagias & Anor v Campbelltown City Council [2010] NSWLEC 1187
PARTIES:	APPLICANTS Angelo Skagias Nick Skagias RESPONDENT Campbelltown City Council
FILE NUMBER(S):	10156 of 2010
CORAM:	Pearson C - Morris C
KEY ISSUES:	DEVELOPMENT MODIFICATION :- Consent orders
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Campbelltown (Urban Area) Local Environmental Plan 2002 Campbelltown (Sustainable City) Development Control Plan 2009
CASES CITED:	Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGRA 298
DATES OF HEARING:	12, 16 July 2010
EX TEMPORE JUDGMENT DATE:	16 July 2010
LEGAL REPRESENTATIVES:	APPLICANTS Mr P Jackson, solicitor Pikes Lawyers RESPONDENT Mr P Marincowitz, solicitor Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson
Commissioner Morris

16 July 2010

10156 of 2010 Skagias & Anor v Campbelltown City Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 Commissioners: This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Campbelltown City Council (the Council) of an application made under s96(2) of the Act to modify a development consent granted by the Council on 14 October 2008 for the demolition of an existing dwelling and the construction of a four storey commercial building with thirty car spaces at 34 Carlisle Street, Ingleburn (the site).

2 The issues between the parties have been resolved and they are seeking consent orders from the Court.

3 The site is located on the corner of Carlisle Street and Boots Lane, Ingleburn within the Ingleburn Business Centre. The site is dual zoned 10(b) District Comprehensive Centre and 5(d) Special Uses Local Roads Zone under the Campbelltown (Urban Area) Local Environmental Plan 2002 (the LEP). The section of land zoned 5(d), Special Uses Local Roads, is 5m wide and runs for the full length of the property adjacent to and parallel to Boots Lane.

4 Vehicle access to and from the site is to be from Boots Lane. Boots Lane is approximately 4m wide and operates as a one way street providing access to a small number of commercial premises to private loading zones and private parking areas. Adjoining the site to the north west, north and north east is a large public car park which provides primary car parking for the northern and eastern section of the Ingleburn Business Centre. Boots Lane provides vehicle egress from a portion of the public car park adjoining the site. There is a loading zone along the Carlisle Street frontage of the site that provides on-street loading facilities for the surrounding commercial premises.

5 The conditions imposed on the development consent included the following:

Condition 1 which endorsed the plans of the approved development;
Condition 10 specifying 30 car parking spaces available to all users of the site;
Condition 13 requiring half width road construction of a minimum of 4m wide in Boots Lane adjacent to the site;
Condition 20 requiring a contribution for 27 car parking spaces in accordance with the Council’s s 94 Contributions Plan for public car parking facilities in the Ingleburn business centre;
Condition 37 requiring regrading of the footpath adjoining the site;
Condition 46 requiring dedication of the 5m wide land required for road widening in Boots Lane and a 4m by 4m splay corner at the intersection of Boots Lane and Carlisle Street; and
Condition 47 requiring dedication of a 4m by 4m splay corner.

6 The modification application sought approval for a total of 48 car parking spaces on the ground floor of the site using a combination of additional car stackers and on grade parking bays, and a reduction in the retail area approved on the ground floor to an area of 73.35 sq m. The application also sought the deletion of conditions 13, 20, 46 and 47 and an amendment to condition 37 to remove the requirement to construct a footpath in Boots Lane and amendments to condition 1 to reflect the modified plans.

7 The Council in its Statement of Facts and Contentions contended that:

the development as sought to be modified is not substantially the same development as the development for which consent was originally granted, and there had not been a change in circumstances since the grant of the original consent;
the proposed modification did not provide for the appropriate collection of waste and recycling as Boots Lane is not sufficiently wide to cater for both the standing of garbage trucks and safe movement of vehicles along Boots Lane; and that the 4m wide pavement along Boots Lane is not of sufficient width to cater for additional traffic movements caused by the development;
it is inconsistent with cl 5.4(c)(iii) of the Campbelltown (Sustainable City) Development Control Plan 2009 as it has not been demonstrated that the development would not cause undue interference with the flow or orderly movement of traffic on Boots Lane;
the provision of only 2 out of 48 car parking spaces for visitors was not satisfactory; and
there would be inadequate servicing facilities as the development would require an on-site loading area.

8 The parties have reached agreement on a re-design of the proposed driveways, parking bay, footpath and landscaping on the site adjoining Boots Lane to provide a 1.2m wide footpath, a 3m wide queuing bay at the western end of the site, a loading bay, and landscaping at the section of Boots Lane at the intersection of Carlisle Street. This proposal requires the removal and relocation of a telegraph pole at the western end of the site. The works on the site along the frontage to Boots Lane are to remain within the site rather than being part of any widening of the public road.

9 These works would be carried out within the 5m wide portion of the site that is zoned 5(d) Special Uses Local Roads under the LEP. The aims and objectives of the 5(d) zone are:

(a) to identify land required for proposed local roads (including the widening of existing roads), and
(b) to allow for the development of such land prior to its acquisition or dedication for use for roads.
Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone.
A further objective of this zone is to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development.

10 Drainage, roads and utility installations are permitted in the 5(d) zone without consent. The Dictionary to the LEP provides the following definition:

Road means a public thoroughfare used for the passage of vehicles, pedestrians or animals.

11 We note that the amended plans provide for the construction of a footpath within this land that would be available as a public thoroughfare for the passage of pedestrians. We further note that the use of the land as proposed to provide vehicle access to the site and the provision of a queuing area and loading bays would be consistent with the aims and objectives of the zones as set out in (b) above.

12 The evidence before the Court includes separate and joint reports from Ms Alison McCabe and Mr Chris Hammersley, expert town planners on behalf of the applicants and the Council respectively, Mr Craig McLaren and Mr Chris Hallam, expert traffic engineers for the applicants and Council respectively, and evidence from a site view on 12 July 2010 which included a view of premises in Oxford Street, Ingleburn which uses vehicle stackers of similar design to that proposed in this application. Mr McLaren and Mr Hallam gave oral evidence addressing three issues, namely queuing, the workability of a proposed plan of management, and servicing of the development.

13 The Council’s contentions raised as an issue the potential for vehicles to queue in Boots Lane as a result of arriving staff being delayed in entering the site whilst awaiting the operation of the car stacker, or casual visitors being unable to find a vacant visitor space, which would interfere with the flow and orderly movement of other vehicles along Boots Lane. Mr McLaren was of the opinion that this would not be an issue, and in any event, could be addressed by means such as requiring in a plan of management a requirement that regular users of the stackers lower their cars by one space so that the next arriving car can enter a vacant space. Both experts agreed that the inclusion of a queuing bay at the western end of the site would address the queuing issue. Both agreed that it would be preferable for safety reasons not to have an automatic lowering of the stackers and that requiring the users to turn the key to lower the stackers would not be difficult. In relation to servicing, the proposal now includes a loading area on the site which in the experts’ opinion achieves the objectives of the Campbelltown (Sustainable City) Development Control Plan 2009.

14 The parties are now in agreement that the development as sought to be modified is substantially the same as that for which consent was originally granted. The expert planners were in agreement that if the issues of queuing and servicing of the site could be resolved, that requirement of s96(2)(a) of the Act would be met. The re-design so that the site includes a footpath, loading bay, queuing area and landscaping at the corner of Boots Lane and Carlisle Street meets the concerns of the Council in relation to the proposed removal of the requirement to dedicate land and the required road widening in Boots Lane. We are satisfied that on the basis of the qualitative and quantitative comparative exercise required by the decision of Bignold J in Moto Projects (N0 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309, the development as sought to be modified is substantially the same as that for which consent was originally granted. As a consequence of this conclusion, the Council’s second contention no longer arises and is not pressed.

15 In considering the merit issues, the addition of 18 car spaces, together with the reduction in area occupied by the retail use on the ground floor, means that the development now provides sufficient car parking spaces to meet the requirements of the Campbelltown (Sustainable City) Development Control Plan, and accordingly, a contribution is not required under s 94 of the Act. The proposed modification to include a loading bay on the site meets the general design requirements for car parking and access in part 5.4.1(c) and the loading and unloading design requirements in part 5.4.2 of the Campbelltown (Sustainable City) Development Control Plan 2009. The relocation of the garbage area to a position closer to Carlisle Street meets the waste collection requirements in part 5.9 of this development control plan. The Council’s contentions relating to waste collection, road width, traffic flow, the public interest and servicing of the site are now addressed.

16 In relation to the provision of parking for casual visitors, the Council’s contentions raised as an issue the possibility that the site could be used for retail premises, medical facilities or other uses that could lead to large numbers of casual visitors to the site. The parties are in agreement that a condition (condition 6A) be imposed to restrict the use of levels 1, 2 and 3 of the development to uses other than retail or medical or dental consulting rooms or other uses that are likely to increase the demand for more than 3 visitor car parking spaces (including one designated disabled car parking space) without development consent being obtained.

17 The conditions proposed include condition 10A to require the preparation of a plan of management for the operation of the stackers.

18 We are satisfied that the requirements of s 96(2) of the Act are met, and, in consideration as required by s 96(3) of the relevant matters raised by s 79C of the Act, that the modification application should be approved and that the consent orders ought to be made.

19 By consent, the Court orders:

1. The appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 relating to the Council’s deemed refusal of an application for modification of development consent DA No 2334/2007/DA-C of 14 October 2008 be upheld.

2. The consent granted by Campbelltown City Council on 14 October 2008 to development application No 2334/2007/DA-C for the demolition of existing dwelling and construction of a four storey commercial building on lot 6, section 4, Deposited Plan 2913 known as No 34 Carlisle Street, Ingleburn is modified as follows:
(1) Deletion of Condition 1 of the Consent and insertion of the following condition:

CONDITION 1: APPROVED DEVELOPMENT
The development shall take place in accordance with the approved development plans, detailed below and all associated documentation submitted with the application, except as modified by any conditions of this Consent.
DRAWING NO. REV TITLE
07022 A 01 G Floor Plans, Elevations and Sections
07022 A 02 E Demolition/ Site Analysis
07022 A 03 B Shadow Diagram
07022 A 04 B Colour Schedule
15974 00 Survey Plan

(2) Deletion of Condition 4 of the Consent and insertion of the following Condition:

CONDITION 4: GARBAGE ROOM
The garbage storage room identified on the approved plans shall:
(a) Be fully enclosed and shall be provided with a concrete floor, with concrete or cement rendered walls coved to the floor.
(b) The floor shall be graded to an approved sewer connection incorporating a sump and galvanised grate cover or basket.
(c) A hose cock shall be provided within the room.
(d) Garbage rooms shall be vented to the external air by natural or artificial means.
A Garbage Management Plan (GMP) shall be prepared for the operation/management and servicing of garbage collection generated from the site. The GMP shall be developed and provided to Council for its approval prior to the release of an Occupation Certificate. The GMP shall provide details of recycling/general waste collection times (that garbage services shall be restricted to 4am to 7am, Monday to Friday), location of collection, return of bins to garbage room, type of bins, and cleaning.

(3) Deletion of Condition 5 – Switchboards/Utilities

(4) Insert new Condition 6A as follows:

CONDITION 6A: FUTURE USE OF LEVELS 1, 2 AND 3 OF THE BUILDING
In order to ensure the continuing compliance with condition No. 10A (K) and (L) the first, second and third levels of the building are not to be used for retail or medical/dental consulting rooms or other uses which are likely to increase the demand for more than three visitor or casual / non-staff car parking spaces (including one designated disabled car parking space) in the building, without development consent for those uses first being obtained.

(5) Deletion of Condition 10.

(6) Insertion of new CONDITION 10A: CAR PARKING SPACES

Forty Eight (48) car parking spaces shall be provided on site and shall be made available to all users of the site and arranged in accordance with Australian Standard 2890.1-2004.
The design of the car stackers and garages are to include the following features:
(a) That a management plan for the use of the stackers be prepared that requires the stackers to be raised at the conclusion of each day and that when staff arrive and fill the lower (vacant) spaces of the stackers that each staff member lower their cars by one space so that the next arriving car can enter a vacant space.
(b) Stackers are to have an emergency back up system in the case of a power failure;
(c) Stackers for disabled access are to be designed to cater for overhead wheelchair storage/roof lifting devices;
(d) One disabled parking space is to be appropriately signed for the use of visitors only.
(e) The two visitor at grade parking spaces are to be appropriately signed for the use of visitors only.
(f) All other parking spaces shall be sign posted as tenants only.
(g) Each garage is to have a sign that limits the height and weight of vehicles entering each parking station to that limited by the specifications of the car stackers;
(h) The stackers are to be fitted with a back to base alarm monitoring system with a call out response time being 24 hours or less;
(i) The garages shall be made secure outside of normal working hours;
(j) External signage is to separately identify the availability of visitor parking, including the single disabled car space. Dynamic signage will illuminate “NO” to the external signage if the visitor parking spaces in each of the two parking areas is fully occupied. A separate illuminated sign shall be installed for the western (two visitor spaces) and eastern (ie single disabled visitor space) driveways.
(k) Tenants and employees of lawful commercial uses within the building who use the parking spaces in the building are to use the non-visitor(s) parking spaces provided in the stackers only.
(l) Visitors using the parking spaces in the building are to use either the two at-grade visitor parking spaces or (where the visitor is authorised to do so) the designated disabled visitor parking space only.
(m) A Plan of Management (PoM) for the management of issues such as operation, maintenance and emergency procedures is to be developed and provided to Council for its approval prior to the release of any Occupation Certificate. The PoM shall be kept on site and in close proximity to the parking area at all times.

(7) Deletion of Condition 13 – Road construction (half width).

(8) Insertion of new Condition 13A – Construction works adjacent to and within Boots Lane – see Condition 13A
13A. Construction works adjacent to and within Boots Lane

Prior to an accredited certifier issuing a construction certificate, the applicant shall submit to Council for approval, engineering details of the required construction works shown on Drawing No. 07022A 01 G and as described below:
(a) Driveway profile, layback kerb/barrier kerb formation, footpath, turfing/landscape and drainage construction works (as well as required service adjustments) within Boots Lane and all public areas that are in accordance with the works set out in Drawing No.07022A 01 G.
(b) A 1.2m wide (minimum) concrete footpath shall be constructed along the Boots Lane side of the site and for the full length of the site. The footpath is to connect to the existing concrete footpath in Carlisle Street. A pram ramp is to be constructed at the western boundary of the site and constructed to finish flush with the existing pavement. All footpath areas are to be graded to match exiting footpath levels and are to be graded to the kerb. All footpath works are to be constructed in accordance with the Campbelltown (Sustainable) City DCP 2009 Volume 2 (as amended).
(c) The land east of the eastern driveway shall be suitably landscaped with plants that do not impede site lines for drivers or pedestrians. In this regard, a detailed landscape plan shall be prepared by a suitably qualified landscape designer and approved by Council.

(9) Deletion of Condition 20 – section 94 contribution – public car parking facilities Ingleburn.

(10) Deletion of Condition 37 – footpath.

(11) Deletion of Condition 46 – road widening.

(12) Deletion of Condition 47 – Splay corner.

3. The Conditions forming part of the development consent granted by Council as modified pursuant to these proceedings are attached as Annexure A.

4. The exhibits are returned except for exhibits A, B, J and 9.

Linda Pearson
Commissioner of the Court

Sue Morris